Opinion
No. 1786 C.D. 2014
07-08-2015
Pocono Mountain School District and Inservco Insurance Services, Petitioners v. Workers' Compensation Appeal Board (Willette), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Pocono Mountain School District and Inservco Insurance Services (collectively, Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ). The WCJ's decision denied Employer's petition to modify Joanne Willette's (Claimant) workers' compensation benefits and granted Claimant's petitions to review compensation benefits. We now affirm.
On May 6, 2009, Claimant sustained a work-related injury when she slipped and fell while walking to her car. (Reproduced Record (R.R.) at 355a.) Claimant received workers' compensation benefits in the amount of $418.00 per week pursuant to a Notice of Temporary Compensation Payable (NTCP). (Id.) The NTCP described Claimant's injuries as "pain [and] contusions" affecting the "low back [and] bilateral knees." (Id.) On August 27, 2009, Employer notified Claimant that her benefits were being suspended, because she returned to work with earnings equal to or greater than her pre-injury earnings. (Id. at 358a.) Claimant's benefits resumed pursuant to a supplemental agreement on July 8, 2010. (Id. at 360a.)
On April 30, 2012, Employer filed a petition to modify Claimant's workers' compensation benefits. The petition provided:
On September 30, 2011, Claimant was examined by Richard Schmidt, M.D. and was found to be capable of working with restrictions. A Notice of Ability to Return to Work (LIBC-757) was forwarded to Claimant on October 20, 2011. No job vacancy within Claimant's restrictions exists with [Employer]. However, based upon Claimant's residual productive skill, education, age, and work experience, she is able to engage in substantial gainful employment and an Earning Power Assessment has determined that employment within her restrictions is available in her usual employment area.(Id. at 4a-6a.) Claimant denied the allegations in Employer's petition and subsequently filed her first petition to review compensation benefits on July 27, 2012. (Id. at 8a.) Claimant, in her first petition, sought to expand the description of her injury to include "aggravation of degenerative disc disease at L4-5, left knee medial meniscus tear and aggravation of degenerative joint disease of the right knee." (Id. at 8a-9a.) On February 6, 2013, Claimant filed her second review petition, alleging that the description of the injury should be expanded to include "bilateral aggravation of degenerative joint disease of the knees resulting in left knee partial medial meniscectomy and aggravation of spodylolisthesis and spondylosis at L4-5 resulting in fusion surgery." (Id. at 12a-14a.) Employer timely filed an answer denying the allegations in both of Claimant's review petitions. (Id. at 10a-11a, 15a-16a.) The WCJ conducted hearings on September 17, 2012, and March 25, 2013.
Claimant also filed a penalty petition which was later withdrawn.
During the hearings before the WCJ, Claimant testified that she injured her low back and bilateral knees on May 6, 2009. (Id. at 24a.) Claimant received treatment for her low back and knees and was released to return to work in August 2009. (Id. at 25a.) She worked until July 8, 2010, at which point the treatment related to Claimant's back was no longer effective. (Id.) Claimant had surgery on her low back in July 2010. (Id. at 26a.) After a functional capacity evaluation (FCE) in July 2010, it was determined that Claimant could return to work on medium or light duty. (Id.) Claimant also had surgery on her left knee in February 2011. (Id. at 27a.) Claimant still receives treatment for her work injury. (Id. at 28a.) Claimant acknowledged that she had sustained a back injury in 2004, a right knee injury resulting in surgery in 2005, a right knee injury in 2007, a left knee and back injury in 2007, and a right knee injury in 2008. (Id. at 37a-38a.) Claimant was also diagnosed with fibromyalgia in 2006. (Id. at 38a.)
Claimant presented the deposition testimony of her orthopedic surgeon, Allister Williams, M.D., who operated on her back and injected her left knee. Dr. Williams testified that Claimant was first seen in his office on May 12, 2009, for complaints related to her work injury on May 6, 2009. (Id. at 164a-65a.) Claimant complained of bilateral knee pain, worse in her right knee than in her left. (Id. at 165a.) Dr. Williams indicated that Claimant had sustained a prior injury to her right knee and that Claimant had been treated for that injury in his office. (Id. at 165a-66a.) An MRI of Claimant's knee showed a degenerative tear of the meniscus of Claimant's left knee. (Id. at 166a.) Claimant was not symptomatic in the left knee prior to her injury on May 6, 2009. (Id.) Dr. Williams testified that Claimant's complaints concerning bilateral knee pain and low back pain were related to her work injury. (Id. at 167a.) Claimant began treating with Dr. Williams' partner, Brian Powers, M.D., for her knee injuries. Dr. Williams testified that Dr. Powers performed surgery on Claimant's left knee, which he would have only done if the knee was symptomatic. (Id. at 168a.) Thus, Dr. Williams testified that the cause of the surgery to Claimant's left knee was her work injury. (Id.) The work injury also aggravated Claimant's preexisting right knee condition. (Id. at 178a.)
Although Dr. Williams did not perform Claimant's knee surgery or treat her for her knee injury, he reviewed the records of those who did treat Claimant for her knee pain. (R.R. at 169a.)
Dr. Williams also explained that an MRI of Claimant's low back revealed "some bulging of the annulus and facet hypertrophy at L4-L5," and "slight hypertrophy of ligamentum flavum," which demonstrated preexisting conditions in Claimant's low back. (Id. at 170a-71a.) Claimant did not have low back pain prior to May 6, 2009. (Id. at 171a.) Dr. Williams explained that patients often have preexisting conditions that are not symptomatic. (Id.) After Claimant's work injury, she developed an aggravation of the degenerative disc disease in her low back which ultimately led to her symptoms. (Id. at 172a, 177a.) Dr. Williams explained that he performed an interbody lumber fusion on Claimant's lumbar spine at L4-L5 due to her pain, not due to the degenerative changes found in the MRI. (Id. at 172a.) He further testified that the surgery was necessary because of Claimant's work-related injury. (Id. at 173a.) After surgery, Dr. Williams referred Claimant for a FCE to determine what Claimant's future work capabilities were. (Id.) The FCE revealed that Claimant could work "light to medium duty, working 8 hours a day, lifting no more than 15 pounds for occasional material handling." (Id. at 175a.) After the FCE, Dr. Williams listed Claimant's work status as "may return to work light duty, no lifting greater than 15 pounds with no excessive standing or twisting." (Id. at 175a-76a.)
On cross-examination, Dr. Williams stated that the extent of his treatment of Claimant's knee was an injection to her left knee. (Id. at 179a.) He had not treated Claimant prior to her office visit on June 11, 2009. (Id. at 179a-80a.) Dr. Williams was aware that Claimant sustained a right knee injury in 2005. (Id. at 180a.) Dr. Williams did not know that Claimant had sustained a cervical, thoracic, and lumbar spine injury in 2004, a left knee injury in 2007, a right knee injury in 2008, or that she had been diagnosed with fibromyalgia in 2006. (Id. at 181a.) He did not see the records concerning her previous injuries. (Id. at 195a-96a.) Dr. Williams was aware that Claimant went back to work full duty from August 24, 2009, through July 8, 2010. (Id. at 197a.) On redirect examination, Dr. Williams explained that Claimant's work restrictions were initially due to her work injury. (Id. at 200a.) She returned to work prior to her fusion surgery. (Id.) She then stopped working due to her surgery, and additional work restrictions since her surgery are related to Claimant's low back. (Id.)
Employer presented the deposition testimony of Richard G. Schmidt, M.D., an orthopedic surgeon. Dr. Schmidt testified that he conducted an independent medical examination (IME) of Claimant on September 30, 2011. (Id. at 328a.) Claimant reported multiple injuries from 2004 to 2009, including prior knee and back injuries. (Id.) Dr. Schmidt reviewed the records pertaining to Claimant's work injury and opined that Claimant did not sustain an aggravation of degenerative disc disease, a left knee medial meniscus tear, or an aggravation of her previous right knee injury as a result of her work injury. (Id. at 329a.) Dr. Schmidt explained:
Employer also presented the deposition testimony of Stephen Ferraioli, the Executive Director of Support Staff Services at Employer. The parties, however, do not raise any issues concerning Mr. Ferraioli's testimony or the WCJ's findings and conclusions as they relate to Mr. Ferraioli's testimony.
[T]he lower back MRI study showed preexisting chronic degenerative changes involving the lower back with no acute changes in the lower back MRI study. The studies of the knee demonstrated chronic degenerative changes, as well. The tear involving the medial horn - - posterior horn of the medial meniscus was a complex tear, which is a degenerative type of tear. And that would not correlate that to any episode of injury.(Id.) Dr. Schmidt opined that Claimant was capable of performing light to medium duty work. (Id. at 330a.)
On cross-examination, Dr. Schmidt agreed that Claimant was capable of performing light to medium duty work, commensurate with the FCE. (Id. at 331a.) Dr. Schmidt's opinion on Claimant's work restrictions did not differ from the FCE. (Id.) Dr. Schmidt was not aware that Claimant's prior injuries to her knees and back, beginning in 2004, were work-related. (Id.) Dr. Schmidt was similarly unaware that Claimant was performing her full duty job with no restrictions prior to her work-related injury on May 6, 2009. (Id.)
Employer next presented the deposition testimony of George L. Cote, a vocational rehabilitation counselor. Based on the recommendations of Dr. Schmidt, Mr. Cote understood that Claimant was able to stand for three to five hours in an eight-hour work day. (Id. at 245a.) Claimant could also sit for three to five hours, and her ability to lift ranged from light to medium. (Id.) Mr. Cote acknowledged that there were no suitable positions for Claimant with Employer. (Id. at 247a.) Mr. Cote considered Claimant's employment with Employer to be semi-skilled and "light to medium in terms of physical requirements." (Id. at 254a.) Claimant was capable of finding employment without additional training or with on-the-job training. (Id.) Mr. Cote conducted an earning power assessment and found five positions within Claimant's physical and vocational abilities. (Id. at 255a.) The positions that Mr. Cote identified included a retail sales consultant with AT&T, a guest service agent with Cove Haven Entertainment Resort, a customer service position with K-Mart, a guest services representative with Staybridge Suites, and a guest services associate with Wyndham World Wide Guest Services. (Id. at 256a-58a.) All of the positions were full-time with a physical demand level of "sedentary to light." (Id. at 256a-59a.) Mr. Cote testified that Claimant could "engage in substantial gainful employment that exists within her usual employment area." (Id. at 262a.) The positions he identified would provide Claimant with between $400.00 and $500.00 per week in wages. (Id.)
Claimant presented the deposition testimony of Gerald W. Keating, a vocational rehabilitation counselor. Mr. Keating testified that he reviewed Mr. Cote's labor market survey, earning power assessment, and testimony. (Id. at 73a, 92a.) He explained that he contacted the five businesses that Mr. Cote identified as potential employers to "follow up on the jobs that were presented in the labor market survey." (Id. at 92a.) Mr. Keating also identified several job descriptions on the internet that concerned the jobs identified by Mr. Cote. (Id. at 93a.) Mr. Keating first opined that the AT&T retail sales consultant position was inappropriate for Claimant, because shifts could be up to ten hours and employees were expected to stand for six to ten hours. (Id. at 99a, 107a.) AT&T further required that employees have the ability to lift up to twenty-five pounds. (Id. at 101a.) The customer service position with K-Mart would exceed Claimant's restrictions, because employees were expected to be on their "feet for the entire shift" and Claimant would need to be able to lift up to forty pounds. (Id. at 105a, 106a-07a.) The guest services associate position with Wyndham World Wide Guest Services was also inappropriate for Claimant, because employees could be expected to remain standing for five hours during busy times. (Id. at 108a, 110a.) The guest service agent position with Cove Haven Entertainment Resort was inappropriate, as Claimant did not have the required experience of two years in a public contact position. (Id. at 114a.) Claimant also lacked computer experience and customer service experience. (Id. at 115a.) Lastly, the guest services representative position with Staybridge Suites was inappropriate, because employees were occasionally expected to carry a guest's bag to their room. (Id. at 119a.) Further, Claimant could be expected to stand for five hours during busy times. (Id. at 121a.)
The WCJ concluded that Employer failed to meet its burden and denied Employer's modification petition. The WCJ also determined that Claimant met her burden regarding her review petition, and the WCJ amended the description of Claimant's injury to include "an aggravation of her degenerative disc disease at L4-5, left knee medial meniscus tear and specifically the treatment for the left knee meniscus tear as well as an aggravation of her pre-existing right knee problem." (WCJ Decision at 11.) In so doing, the WCJ made the following relevant findings of fact with respect to Dr. Williams' and Mr. Keating's testimony:
47. This Judge finds the testimony of Dr. Williams to be more credible than the testimony of Dr. Schmidt. In that regard, Dr. Williams has been treating Claimant since June 11, 2009. In addition, Dr. Williams' colleagues also have provided Claimant treatment for her complaints so Dr. Williams[] had his colleagues treatment notes for review and consideration during his treatment. This Judge accepts Dr. Williams' testimony that Claimant sustained an aggravation of her degenerative disc disease at L4-5, left knee medial meniscus tear and specifically the treatment for the left knee medial meniscus tear and an aggravation of her pre-existing right knee problem as a result of her May 6, 2009 work injury. In support of his opinion, Dr. Williams[] acknowledged that Claimant's diagnostic studies of Claimant's knees and low back revealed degenerative changes, but Dr. Williams opined that Claimant did not have symptomatic problems immediately prior to her May 6, 2009 work injury. Dr. Williams opined that the mechanism of injury is consistent with the type of injury that could aggravate Claimant's condition and make her degenerative changes symptomatic. In fact, even Dr. Schmidt acknowledged that after a number of work injuries Claimant sustained in 2004, 2005, 2007, 2008, Claimant returned to her regular duty job. Moreover, Dr. Schmidt did not review any medical records immediately prior to Claimant's May[] 2009 work injury that continued any restrictions on Claimant[']s[] right or left knee or low back but admitted that since Claimant's May [] 2009 work injury, he has not reviewed any records that indicated Claimant is capable of returning to work without restrictions.
Furthermore, this Judge also accepts the testimony of Dr. Williams that he released Claimant to return to work, working 8 hours a day, lifting no more than 15 pounds for occasional material handling noting his restrictions were based upon a June 30, 2011 [FCE]. While Dr. Schmidt indicated he relied upon the [FCE], he believed Claimant could lift up to 50 pounds and even believed the restrictions were not related to any work injury. Accordingly, for these reasons, this Judge accepts the opinions of Dr. Williams as credible and rejects the opinions of Dr. Schmidt to the extent his opinions are inconsistent with the opinions of Dr. Williams.
. . .
49. This Judge finds the testimony of Mr. Keating to be more credible than the opinions of Mr. Cote. First, Mr. Keating outlined who he contacted with the prospective employers and the requirements of the positions, while Mr. Cote admitted that his report regarding the five job descriptions contains no person contact listed on any of the five jobs. The evidence of record even establishes that some of Mr. Cote's contact people no longer held their position. This Judge also notes inconsistencies with the information obtained by both vocational experts but finds Mr. Keating's testimony more credible as he was thorough and specifically outlined who he spoke to and the specific requirements. This Judge accepts Mr. Keating's testimony that the jobs were outside the restrictions of Dr. Williams as they all required the ability to lift over 15 pounds. Notwithstanding, this Judge finds most significant that Mr. Cote admitted to having more detailed job descriptions for the jobs with AT&T, Cove Haven, Kmart, Staybridge, and Wyndham that were prepared by . . . Employer but never sent copies of the more detailed descriptions to Dr. Schmidt for approval but instead only sent job descriptions he prepared. Mr. Keating outlined inconsistencies between some of the job descriptions. Regardless, this Judge does not find Mr. Cote's testimony credible when he admitted to having job descriptions prepared by the [e]mployers but chose to only use the job descriptions he prepared in his labor market survey. Accordingly, this Judge rejects the
testimony of Mr. Cote to the extent his testimony is inconsistent with the testimony of Mr. Keating.(Id. at 9-10.) Employer appealed to the Board, which affirmed the WCJ's decision. Employer then appealed to this Court.
On appeal, Employer first argues that the WCJ erred in granting Claimant's review petitions, because Dr. Williams' testimony was incompetent, equivocal, and lacked foundation. Employer then argues that the WCJ erred in denying its modification petition, because Mr. Keating's testimony was irrelevant and inadmissible.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
We first address the arguments concerning Claimant's review petitions. "When such a petition is filed, the WCJ must treat the respective burdens of the parties as if the review petition were an original claim petition." Westinghouse Elec. Corp./CBS v. Workers' Comp. Appeal Bd. (Korach), 883 A.2d 579, 592 (Pa. 2005). Pursuant to Section 301(c)(1) of the Workers' Compensation Act (Act), an employee's injuries are compensable if they "(1) arise[] in the course of employment and (2) [are] causally related thereto." ICT Grp. v. Workers' Comp. Appeal Bd. (Churchray-Woytunick), 995 A.2d 927, 930 (Pa. Cmwlth. 2010). Further, an employee must demonstrate that he is disabled as a consequence of the work-related injury. Cromie v. Workmen's Comp. Appeal Bd. (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). Unequivocal medical evidence is required where it is not obvious that an injury is causally related to the work incident. Id.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
Employer first argues that Dr. Williams' testimony concerning Claimant's left knee was incompetent. "[T]he question of the competency of the evidence is one of law and fully subject to our review." Cerro Metal Prods. Co. v. Workers' Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004), appeal denied, 868 A.2d 1202 (Pa. 2005). Employer relies on the proposition that "where a medical expert has no knowledge of the claimant's prior injuries and medical history, his testimony on causation is not competent." (Pet'r's Br. at 24.) Employer cites Southwest Airlines/Cambridge Integrated Service v. Workers' Compensation Appeal Board (King), 985 A.2d 280 (Pa. Cmwlth. 2009), and Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2001), in support of this proposition. Both Southwest Airlines and Chik-Fil-A are, however, distinguishable from this matter.
In Southwest Airlines, claimant's doctor had no knowledge of her prior head injuries when he testified concerning her work-related head injury. The doctor did not review the claimant's medical records, which revealed prior injuries and symptoms similar to the work injury. The claimant obfuscated her medical history by claiming that she had suffered no prior injuries and that she had "never had any problems with or received treatment for[] headaches, migraines, dizziness, blackouts or memory loss." Southwest Airlines, 985 A.2d at 282. This Court noted that the doctor's "opinions were based on an incomplete and inaccurate medical history, as well as [the c]laimant's personal opinion of causation." Id. at 287. The doctor's medical opinion was, therefore, incompetent.
The claimant in Chik-Fil-A testified that she injured her back in 1995 and that she had no prior injuries. The claimant's doctor indicated that he did not review her medical records and that his opinion was based entirely on the records pertaining to the claimant's work injury in 1995. The claimant, however, had neck and back problems prior to her work injury and had previously treated with a chiropractor. The claimant's doctor testified that if the claimant's medical history was not what she indicated, his opinion would be incorrect. This Court determined that the testimony of the claimant's doctor was incompetent.
In both Southwest Airlines and Chik-Fil-A, the experts were entirely unaware of any injuries or symptoms prior to the work-related injuries. The symptoms which resulted from those prior injuries were the same or very similar to those which resulted from the work-related injuries. The experts based their opinions on the inaccurate medical history given by the claimants. In the instant matter, Dr. Williams based his opinion on the fact that Claimant was working full duty without restrictions prior to her injury on May 6, 2009. "While an expert witness may base an opinion on facts of which he has no personal knowledge, those facts must be supported by evidence of record." Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d 1062, 1066 (Pa. 1997). Here, both experts acknowledged that Claimant was working without restrictions prior to her work-related injury. Despite her prior injuries, Claimant did not have any of the knee and back symptoms before her work-related injury which would later prevent her from working full duty. Further, "the fact that a medical expert does not have all of a claimant's medical records goes to the weight given the expert's testimony, not its competency." Huddy v. Workers' Comp. Appeal Bd. (U.S. Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006). Determinations as to the weight to be given to medical testimony are solely for the WCJ as factfinder. Cittrich v. Workmen's Comp. Appeal Bd. (Laurel Living Ctr.), 688 A.2d 1258, 1259 (Pa. Cmwlth. 1997). Dr. Williams' failure to review all of Claimant's medical records, particularly where he based his opinion only on her ability to work without restrictions, does not render his testimony incompetent. It is also relevant that Dr. Williams did not change his opinion after he learned of Claimant's prior injuries. We, therefore, reject Employer's argument that Dr. Williams' testimony was incompetent.
Claimant contends that Employer's argument concerning competency is essentially a challenge to the WCJ's credibility determinations. To the extent that Employer is challenging the WCJ's credibility determinations, we note "that the WCJ has the exclusive authority to make findings of fact and credibility determinations." Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). We will not disturb these determinations on appeal.
We next address Employer's argument that Dr. Williams' testimony was equivocal. "Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists." Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 954 (Pa. Cmwlth.), appeal denied, 960 A.2d 457 (Pa. 2008). "The equivocality of medical testimony is to be judged upon review of the entire testimony." Carpenter Tech. Corp. v. Workers' Comp. Appeal Bd. (Wisniewski), 600 A.2d 694, 696 (Pa. Cmwlth. 1991). Taking a medical expert's testimony as a whole, it will be found to be equivocal if it is based only upon possibilities, is vague, and leaves doubt." Kurtz v. Workers' Comp. Appeal Bd. (Waynesburg College), 794 A.2d 443, 449 (Pa. Cmwlth. 2002).
Employer contends that Dr. Williams' testimony with respect to Claimant's left knee injury and low back injury was equivocal. Regarding Claimant's left knee, Dr. Williams testified:
Q. You indicated that the MRI of the left knee revealed a degenerative tear. Would that mean that the tear was present before she fell?(R.R. at 167a-68a.) Employer contends that this testimony concerning the meniscal tear is equivocal and, thus, the WCJ's finding that the work injury includes a left knee medial meniscus tear is not supported by substantial evidence. The WCJ, however, indicated that the work injury should include a "left knee medial meniscus tear and specifically the treatment for the left knee meniscus tear." (WCJ Decision, F.F. No. 51 (emphasis added).) The treatment for the meniscus tear was surgery, which Dr. Williams specifically testified was a result of the fall on May 6, 2009. Accordingly, we reject Employer's argument that Dr. Williams' testimony with regard to Claimant's left knee was equivocal.
A. Possibly. It was a complex tear. It could be degenerative in nature. It could have been partially torn. It could have been as it was before she fell and then became symptomatic after she fell. Hard to a hundred percent know.
. . .
Q. And would it be normal to do surgery on an asymptomatic tear?
A. No one would do surgery on an asymptomatic tear.
Q. And, again, based upon your review, the left knee was not symptomatic before the fall?
A. Prior to that, correct.
Q. In your opinion, within a reasonable degree of medical certainty, would the cause for the surgery to the left knee be the fall of May 6, 2009?
A. Yes.
. . .
A. I do believe that given that she hasn't treated before and that she was not symptomatic, I think the fall could have clearly caused . . . the tear, which the radiologist describes in 2011 as complex tearing of the medial horn - he doesn't describe it as degenerative. . . .
"Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion." Cinram Manufacturing, Inc. v. Workers' Comp. Appeal Bd. (Hill), 975 A.2d 577, 583 (Pa. 2009). --------
Regarding Claimant's low back, Dr. Williams testified:
Q. And, again, based upon your evaluation of the patient and the history provided, did she have any symptomatic problems in her low back?
A. Yes, she did. She had back pain and leg pain.
Q. Prior to May 6, 2009?
A. Oh, no. No prior history of that.
Q. Okay. Is that something that is normal that somebody could have degenerative changes, preexisting changes in their lumbar spine that are not symptomatic?
A. Absolutely. It happens all the time.
Q. And the mechanism of injury that [Claimant] described, was that consistent with the type of injury that could make those type of asymptomatic degenerative changes symptomatic?
A. Absolutely. She had facet hypertrophy. And she actually - on X ray she has what we call spondylolisthesis, which is a little bit of shifting in the vertebrae. And it could have happened that she had these
degenerative changes which were visible on MRI when the patient is supine. But when she fell and got into this accident, she developed some instability, which is probably what caused her pain for the most part.(R.R. at 171a-72a (emphasis added).) On cross-examination, Dr. Williams testified:
. . .
Q. Okay. And, Doctor, again, based upon your examination of the patient, your review of the records from the other providers in your office, the MRI reports, and the history provided by the claimant, within a reasonable degree of medical certainty, did [Claimant] suffer an aggravation of her degenerative disk disease at L4-5 as a result of the May 6, 2009 work injury?
A. Yes, she did.
Q. Okay. Is there any - was there any structural change in her back as a result of this incident?(Id. at 196a-97a (emphasis added).) Although Dr. Williams uses the word "probably" during his testimony, his testimony as a whole reflects his opinion that Claimant's degenerative disc disease was aggravated because she developed instability after her fall. "A medical witness's use of words such as 'probably,' 'likely,' and 'somewhat' will not render an opinion equivocal so long as the testimony, read in its entirety, is unequivocal and the witness does not recant the opinion or belief first expressed." Bemis v. Workers' Comp. Appeal Bd. (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011), appeal denied, 54 A.3d 350 (Pa. 2012). We, therefore, reject Employer's argument that Dr. Williams' testimony concerning Claimant's low back was equivocal.
A. That, I do not know the answer to because she might have developed the spondylolisthesis, which is instability, which is normally the event that causes the patient to become symptomatic in regards to degeneration of the low back.
Q. So your opinion to a reasonable degree of medial certainty is that she had an aggravation of symptoms due to the incident?
A. To a reasonable degree of medical certainty, her symptoms were aggravated - or her symptoms - I would say the symptoms related to her spondylosis and degenerative disk disease were aggravated due to her injury.
We next address Employer's argument that Dr. Williams' testimony concerning Claimant's right knee lacked foundation. Specifically, Employer contends that an "expert must state the facts or date on which the opinion is based," and that "Dr. Williams did not provide any basis for his opinion regarding Claimant's right knee injury." (Pet'r's' Br. at 30.) As noted above, an expert must provide a foundation for his testimony to be considered unequivocal, and, thus, competent. See Coyne, 942 A.2d at 954. "Where the foundation for the medical evidence is contrary to the established facts in the record, or is based on assumptions not in the record, the medical opinion is valueless and not competent." Indiana Floral Co. v. Workers' Comp. Appeal Bd. (Brown), 793 A.2d 984, 990 (Pa. Cmwlth. 2002) (quotations and citations omitted). Here, there was adequate foundation for Dr. Williams to opine that Claimant aggravated a preexisting knee problem. Dr. Williams testified that Claimant felt "pain in both knees, the right greater than the left," when she fell on May 6, 2009. (R.R. at 165a.) He further indicated that Claimant had a prior right knee surgery. (Id. at 165a-66a, 180a.) Dr. Williams testified that Claimant had no work restrictions prior to her work injury, but that she had work restrictions directly after her injury. (Id. at 200a.) Dr. Williams also indicated that Claimant complained of bilateral knee pain after her work injury, and that she was being treated by other doctors in his office for knee pain. (Id. at 178a.) He reviewed the records concerning her knee problems. (Id.) Dr. Williams' testimony as a whole demonstrates that he provided the proper foundation to opine that Claimant aggravated a preexisting knee problem. We, therefore, reject Employer's argument that Dr. Williams' testimony concerning Claimant's right knee lacked foundation.
We next address Employer's arguments that the WCJ erred in denying Employer's modification petition. "[A] claimant bears no burden of proving anything when an employer files a modification petition[; rather, t]he employer bears the burden of proving that the modification petition should be granted." Pettigrew v. Workmen's Comp. Appeal Bd. (Yarway Co.), 590 A.2d 1364, 1369 (Pa. Cmwlth.), appeal denied, 602 A.2d 863 (Pa. 1991). Employer first argues that Mr. Keating's testimony was irrelevant because he did "not know what job requirements were given to Mr. Cote by the employers and he [did] not know what jobs were available at the time of the Earning Power Assessment." (Pet'r's Br. at 32.) "To be relevant, proffered evidence need merely tend to make the fact at issue more or less probable and be in some degree probative of the inquiry." USX Corp. (Clairton) v. Workers' Comp. Appeal Bd. (Labash), 788 A.2d 1101, 1106 (Pa. Cmwlth. 2001), appeal denied, 803 A.2d 737 (Pa. 2002). Although Mr. Keating did not create his own earning power assessment and labor market survey, Mr. Keating testified that he reviewed the various employers' job requirements as Mr. Cote presented them in his earning power assessment, labor market survey, and testimony. (R.R. at 129a.) His knowledge of job availability was also based on Mr. Cote's earning power assessment, labor market survey, and testimony. (Id. at 131a.) Mr. Keating's testimony was, therefore, relevant as rebuttal testimony presented in opposition to the testimony of Mr. Cote. Accordingly, we reject Employer's argument that Mr. Keating's testimony was irrelevant.
Lastly, Employer argues that Mr. Keating's testimony was inadmissible as hearsay and, thus, insufficient to support the WCJ's findings. Regarding hearsay testimony by vocational counselors, this Court has held:
Opinion testimony by a vocational counselor concerning a claimant's ability to meet the specific duties of a position, when that opinion is formed by the counselor's personal observations of the duties of the position and is based on information of the type normally relied on by such an expert in forming an opinion, is not hearsay testimony and is admissible in workmen's compensation hearings.Kilker v. Workmen's Comp. Appeal Bd. (E.J. Rogan & Sons), 667 A.2d 1215, 1216-17 (Pa. Cmwlth. 1995). Our Supreme Court has held that even if a vocational expert's testimony is not based on personal observations and, therefore, constitutes hearsay, "it [i]s nevertheless admissible because it [i]s the type of information reasonably relied on by an expert in the field forming an opinion." Joyce v. Workmen's Comp. Appeal Bd. (Ogden/Allied Maint.), 705 A.2d 417, 418 n.3 (Pa. 1997); see also Acme Markets, Inc. v. Workmen's Comp. Appeal Bd. (Pivalis), 597 A.2d 294, 298 n.3 (Pa. Cmwlth. 1991) ("[T]he testimony of the expert, although based upon data not admissible in evidence, is legally competent if that data is of the type reasonably relied on by an expert in the particular field in forming an opinion on the subject."). A vocational counselor's opinions concerning job availability are admissible because "[a] vocational counselor acquires job descriptions and information about job availability from prospective employers and relies on this information in making job referrals." Joyce, 705 A.2d at 418 n.3.
Mr. Keating's testimony was based on information of the type reasonably relied on by an expert in the particular field in forming an opinion on the subject and was, therefore, admissible. Vocational counselors speak to prospective employers and obtain job descriptions to determine job availability. Further, Mr. Keating testified that job descriptions, like those he obtained online, are a means of gathering information about potential jobs and are the kind of materials he generally relies on as part of his work as a vocational counselor. (R.R. at 94a-95a.) Although the job descriptions and Mr. Keating's discussions with potential employers may have attributes of hearsay, they are admissible. We, therefore, reject Employer's argument that Mr. Keating's testimony was inadmissible as hearsay and, thus, insufficient to support the WCJ's findings.
Accordingly, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 8th day of July, 2015, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge